Calcutta High Court (Appellete Side)
Dr. Ajoy Mondal & Ors vs The State Of West Bengal & Ors on 8 November, 2017
Author: Samapti Chatterjee
Bench: Samapti Chatterjee
1
8. 11 . 2017
BP W.P. 26422(W) of 2017
Sl. 12
Dr. Ajoy Mondal & Ors.
Vs.
The State of West Bengal & Ors.
Mr. Ekramul Bari
Mr. S.S. Mondal
..for the petitioners.
Mr. Rajarshi Basu
Mr. S.T. Mina
..for the State.
Mr. N.C. Bihani
Mrs. Papiya Banerjee
Ms. Anuradha Sengupta
Ms. Srijoni Chongdar
..for the Burdwan University.
It is submitted by Mr. Ekramul Bari, learned
advocate for the petitioners that the deficit court fees
has been deposited vide filing no. A 18959.
The petitioners have filed the present writ
petition assailing the impugned order dated 10th
October, 2017 passed by the Registrar of the Burdwan
University thereby directing, inter alia, that pursuant to
the resolution of the Executive Council dated 30th
January, 2017 under Item No. 226 (A.O.M.) the tenure
2
of appointment of the Technical Assistants Gr-II joined
on 18-01-2016/19-01-2016 are extended for a period of
one year keeping one day break. It was also resolved at
the same meeting that annual increment that has been
given to the said Technical Assistants Gr-II are
withdrawn and will be recovered from their salary of the
next month. This notification is issued pursuant to the
resolution of the Executive Council dated 21st
September, 2017 under Item No 163 (A.O.M.).
Mr. Bari, learned advocate appearing for the
petitioners submits that initially petitioner was given
appointment as a temporary Technical Assistant Gr-II
(non-teaching post) in the Department of Bio-
Technology, Burdwan University, on 18th January,
2016/19th January, 2016. Mr. Bari further submits
that after completion of the probation period the
respondent University without taking any step to make
the petitioner's appointment as permanent from temporary one, they have issued the impugned order dated 10th October, 2017. Mr. Bari in support of his contention relies on Sub-rule (4) of Rule 31 of the Burdwan University Act, 1981. The extract of the Sub- rule (4) of Rule 31 of the said Act is quoted bellow:- 3
" Provided that if, on completion of the period of probation, no such order of confirmation is made and communicated to the person concerned within a period of two months of the completion of the period of probation, the person concerned shall be deemed to have been confirmed with effect from the date of his appointment on probation"
Mr Bari further submits that the impugned order dated 10th October, 2017 should be quashed and set aside.
Mr. Bihani, learned advocate appearing on behalf of the Burdwan University on last occasion prays for some time to take complete instruction in the matter. Such prayer was allowed thereby fixing the matter today at 2 p.m. to enable Mr Bihani to take complete instruction in the matter. In the meantime the authority was directed not to give any effect or further effect in respect of Clause (2) of the impugned order dated 10th October, 2017 which is quoted below:-
"(2) Annual increment that has been given to the said Technical Assistants Gr-II are withdrawn and will be recovered from their salary of the next month.
This notification is issued Pursuant to 4 the resolution of the Executive Council dated 21-09-2017 under Item No.163 (A.O.M.)." The matter was fixed today at 2 p.m. to enable Mr. Bihani to take complete instruction.
Today Mr. Bihani, with instruction, submits that the petitioners' appointment are purely on temporary basis. Therefore, the petitioners cannot take any benefit under Regulation 31(4) proviso.
Mr. Bihani further submits that Regulation 31 is made only for the employees who have been given appointment against the post of permanent vacancy. It is evident from the advertisement which appears at page 41 of the writ petition and also from the petitioners' appointment letter dated 14th January, 2016 appears at pages 43 and 44 respectively in the writ petition, that the petitioners' appointment are purely temporary in nature. Therefore, the petitioners are debarred to take any advantage of Regulation 31 of the Burdwan University Act, 1981 (as amended up to date), Mr. Bihani, with his usual fairness, submits that it is crystal clear from the order since the petitioners' 5 appointment are purely temporary in nature, therefore, the authority has the power to break the petitioners' continuous service for one day. Therefore, the petitioners cannot take advantage of Regulation 31(4) proviso which is for the permanent employees.
Considering the submissions as advanced by the learned advocates for the parties and after perusing the record, I find from the impugned order dated 10th October, 2017 that the petitioners' appointment on 18th /19th January, 2016 has been extended for a period of one year by Clause (1). In my considered view, Clause (2), which has already been referred to, cannot be sustained in the eye of law as the authority has already granted such benefit to the petitioners, knowing fully well that the petitioners' appointment are purely on temporary basis.
Considering the discussions as above and after perusing the Burdwan University Act and Regulations, Clause (2) of the impugned notification dated 10th October, 2017 is hereby quashed and set aside. Other portion of the notification dated 10th October, 2017 is unaltered.
With this direction, this writ petition is disposed 6 of.
No order as to costs.
Urgent photostat certified copy of this order, if applied for, be furnished on priority basis.
(Samapti Chatterjee, J. ) 7